New IT Rules: Key Points of Understanding

KEY POINTS OF UNDERSTANDING

Recently, the Ministry of Electronics and Information Technology, Government of India has notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. These new rules broadly deal with the regulation of social media and over-the-top platforms and digital news. These rules have been framed in exercise of powers under section 87 (2) of the Information Technology (IT) Act, 2000 and in suppression of the earlier Information Technology (Intermediary Guidelines) Rules 2011.

These rules seek to provide compliance of law and a grievance redressal mechanism for users of social media platforms, messaging applications, streaming services as digital news publishers.

The government envisages controlling hate speech which gets proliferated through these platforms and threatens national security. However, critics pointed that the question of stricter regulation of digital media will lead to restriction of free speech and undermining of democracy. So, let’s see what these rules are.

A. Grievance redressal mechanism

Grievance has been defined to mean any complaint whether regarding any content, any duties of the intermediary or publisher under the Act, or other matters pertaining to the computer resource or publisher, as the case may be;

Grievance officer means any officer appointed by the publisher case may be, for the purposes of these rules; as the case may be, for the purposes of these rules;

B. Due diligence by an Intermediary by Social Media Intermediary and Significant Social Media Intermediary

Significant social media intermediary meaning an intermediary with registered users in India above such threshold as notified by the Central Government;

Social media Intermediary means intermediary which primarily allows interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services;

• The intermediary shall prominently publish on its website, mobile-based application or both, as the case may be, the rules and regulations, privacy policy and user agreement for access or usage of its computer resource by any person.
• The intermediary shall inform the user not to host, display, upload, modify, publish, transmit, store, update or share any information that,—
  • belongs to another person and to which the user does not have any right;
  • including bodily privacy, insulting or harassing on the basis of gender, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or otherwise inconsistent with or contrary to the laws in force;
  • is harmful to the child
  • infringes any patent, trademark, copyright or other proprietary rights;
  • violates any law for the time being in force;
  • deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any information which is patently false or misleading in nature but may reasonably be perceived as a fact;
  • impersonates another person;
  • threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order, or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting other nation;
  • contains a software virus or any other computer code, file or program designed to interrupt, destroy or limit the functionality of any computer resource;
  • is patently false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person.
• An intermediary shall periodically inform its users, at least once every year, that in case of non-compliance with rules and regulations, it has the right to terminate the access or usage rights of the users to the computer resource immediately or remove non-compliant information or both, as the case may be.
• An intermediary, on whose computer resource the information is stored, hosted or published, upon receiving actual knowledge in the form of an order by a court of competent jurisdiction or on being notified by the Appropriate Government or its agency under clause (b) of sub-section (3) of section 79 of the Act, shall not host, store or publish any unlawful information, which is prohibited under any law for the time being in force in relation to the interest of the sovereignty and integrity of India; security of the State; friendly relations with foreign States; public order; decency or morality; in relation to contempt of court; defamation; incitement to an offence relating to the above, or any information which is prohibited under any law for the time being in force.
• The intermediary shall periodically, and at least once a year, inform its users if any change takes place in the rules and regulations, privacy policy or user agreement, as the case may be.
• Whereupon receiving actual knowledge under clause (d), on a voluntary basis on violation of clause (b), or on the basis of grievances received under sub-rule (2) in section 79 of the Act, any information has been removed or access to which has been disabled, the intermediary shall, without vitiating the evidence in any manner, preserve such information and associated records for one hundred and eighty days for investigation purposes, or for such longer period as may be required by the court or by Government agencies who are lawfully authorized.
• The information so collected from a user for registration on the computer resource shall retain for a period of one hundred and eighty days after any cancellation or withdrawal of his registration, as the case may be.
• The intermediary shall take all reasonable measures to secure its computer resource and information contained therein following the reasonable security practices and procedures as prescribed in the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011.
• The intermediary shall, as soon as possible, but no later than seventy-two hours of the receipt of an order, provide information under its control or possession, or assistance to the Government agency which is lawfully authorised for investigative or protective or cybersecurity activities, for the purposes of verification of identity, or for the prevention, detection, investigation, or prosecution, of offences under any law for the time being in force, or for cybersecurity incidents.
• Any such order shall be in writing stating clearly the purpose of seeking information or assistance, as the case may be.
• The intermediary shall not knowingly deploy or install or modify the technical configuration of computer resources or become a party to any act that may change or has the potential to change the normal course of operation of the computer resource.
• The intermediary may develop, produce, distribute or employ technological means for the purpose of performing the acts of securing the computer resource and information contained therein.
• The intermediary shall report cybersecurity incidents and share related information with the Indian Computer Emergency Response Team in accordance with the policies and procedures as mentioned in the Information Technology (The Indian Computer Emergency Response Team and Manner of Performing Functions and Duties) Rules, 2013.

C. Grievance redressal mechanism of Social Media Intermediary

• The intermediary shall prominently publish on its website, mobile-based application or both, as the case may be, the name of the Grievance Officer and his contact details as well as mechanism by which a user or a victim may make a complaint against violation of the provisions of this rule or any other matters pertaining to the computer resources made available by it.
• The Grievance Officer shall acknowledge the complaint within twenty-four hours and dispose of such complaint within a period of fifteen days from the date of its receipt.
• The officer shall also receive and acknowledge any order, notice or direction issued by the Appropriate Government, any competent authority or a court of competent jurisdiction.
• The intermediary shall, within twenty-four hours from the receipt of a complaint made by an individual or any person on his behalf under this sub-rule, in relation to any content which is prima facie in the nature of any material which exposes the private area of such individual, should take all reasonable and practicable measures to remove or disable access to such content which is hosted, stored, published or transmitted by it.
• The intermediary shall implement a mechanism for the receipt of complaints under clause (b) of this sub-rule which may enable the individual or person to provide details, as may be necessary, in relation to such content or communication link.

D. Additional due diligence to be observed by significant social media intermediary

• Under rule 3, a significant social media intermediary shall, within three months from the date of notification of the threshold under clause (v) of sub-rule (1) of rule 2, observe the following additional due diligence while discharging its duties, namely:—
• A Chief Compliance Officer shall be responsible for ensuring compliance with the Act and rules made thereunder and shall be liable in any proceedings relating to any relevant third-party information, data or communication link made available or hosted by that intermediary where he fails to ensure that such intermediary observes due diligence while discharging its duties under the Act and rules made thereunder. Chief Compliance Officer should be managerial personnel or such other senior employee of a significant social media intermediary who is resident in India.
• No liability under the Act or rules made thereunder may be imposed on such significant social media intermediary without being given an opportunity of being heard.
•   A nodal contact person shall be there for 24×7 coordination with law enforcement agencies and officers to ensure compliance to their orders or requisitions made in accordance with the provisions of law or rules made thereunder.
• The nodal contact person shall be an employee of a significant social media intermediary, other than the Chief Compliance Officer, who is resident in India.
•  A Resident Grievance Officer, who shall, subject to clause (b), be responsible for the functions referred to in sub-rule (2) of rule 3. Resident Grievance Officer means an employee of a significant social media intermediary, who is resident in India.
• Publish periodic compliance report every month mentioning the details of complaints received and action taken thereon.
• A significant social media intermediary providing services primarily in the nature of messaging shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial order passed by a court of competent jurisdiction or an order passed under section 69 by the Competent Authority as per the Information Technology (Procedure and Safeguards for interception, monitoring and decryption of information) Rules, 2009, which shall be supported with a copy of such information in electronic form.
•  An order shall only be passed for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material, punishable with imprisonment for a term of not less than five years.
• No order shall be passed in cases where other less intrusive means are effective in identifying the originator of the information.
•  In complying with an order for identification of the first originator, no significant social media intermediary shall be required to disclose the contents of any electronic message, any other information related to the first originator, or any information related to its other users.
• If the first originator of any information on the computer resource of an intermediary is located outside the territory of India, the first originator of that information within the territory of India shall be deemed to be the first originator of the information for the purpose of this clause.
• A significant social media intermediary that provides any service with respect to the information or transmits that information on behalf of another person on its computer resource, for direct financial benefit in a manner that increases its visibility or prominence, or targets the receiver of that information; or to which it owns a copyright, or has an exclusive license, or in relation with which it has entered into any contract that directly or indirectly restricts the publication or transmission of that information through any means other than those provided through the computer resource of such social media intermediary, shall make that information clearly identifiable to its users as being advertised, marketed, sponsored, owned, or exclusively controlled, as the case may be, or shall make it identifiable as such in an appropriate manner.
• A significant social media intermediary shall endeavour to deploy technology-based measures, including automated tools or other mechanisms to proactively identify information that depicts any act or simulation in any form depicting rape, child sexual abuse or conduct, whether explicit or implicit or any information which is exactly identical in content to information that has previously been removed or access to which has been disabled on the computer resource and shall display a notice to any user attempting to access such information stating that such information has been identified by the intermediary under the categories referred to in this.
• The significant social media intermediary shall have a physical contact address in India published on its website, mobile-based application or both, as the case may be, for the purposes of receiving the communication addressed to it.
•  The significant social media intermediary shall implement an appropriate mechanism for the receipt of complaints under sub-rule (2) of rule 3 and grievances in relation to the violation of provisions under this rule, which shall enable the complainant to track the status of such complaint or grievance by providing a unique ticket number for every complaint or grievance received by such intermediary.
• The significant social media intermediary shall enable users who register for their services from India, or use their services in India, to voluntarily verify their accounts by using any appropriate mechanism, including the active Indian mobile number of such users, and where any user voluntarily verifies their account, such user shall be provided with a demonstrable and visible mark of verification, which shall be visible to all users of the service.
• The Ministry may call for such additional information from any significant social media intermediary as it may consider necessary for the purposes of this part.

E.Additional due diligence to be observed by an intermediary in relation to news and current affairs content

• In adherence to rules 3 and 4, an intermediary shall publish, on an appropriate place on its website, mobile-based application or both, as the case may be, a clear and concise statement informing publishers of news and current affairs content that in addition to the common terms of service for all users, such publishers shall furnish the details of their user accounts on the services of such intermediary to the Ministry as may be required under rule 18.
•  The intermediary may provide such publishers who have provided information under rule 18 with a demonstrable and visible mark of verification as being publishers, which shall be visible to all users of the service.
• This rule relates only to news and current affairs content and shall be administered by the Ministry of Information and Broadcasting.
• Where an intermediary fails to observe these rules, the provisions of sub-section (1) of section 79 of the Act shall not be applicable to such intermediary and the intermediary shall be liable for punishment under any law for the time being in force including the provisions of the Act and the Indian Penal Code.

F. Code of Ethics and Procedure in relation to Digital Media-Publisher of News and Current Affairs and Curated Content 

• The rules made under this Part shall apply to the following persons or entities, namely:—
  • publishers of news and current affairs content;
  • publishers of online curated content; and shall be administered by the Ministry of Information and Broadcasting, Government of India.
• A publisher shall be deemed to operate in the territory of India where such publisher has a physical presence in the territory of India.
• And their Systematic activity involves elements of planning, method, continuity or persistence.
• A publisher referred to in rule 8 shall observe and adhere to the Code of Ethics.
•  Notwithstanding anything contained in these rules, a publisher referred to in rule 8 who contravenes any law for the time being in force, shall also be liable for consequential action as provided in such law which has so been contravened.
•  For ensuring observance and adherence to the Code of Ethics by publishers operating in the territory of India, and for addressing the grievances made in relation to publishers under this Part, there shall be a three-tier structure as under—
  • Level I – Self-regulation by the publishers;
  •  Level II- Self-regulation by the self-regulating bodies of the publishers;
  •  Level III – Oversight mechanism by the Central Government.

G. Grievance Redressal Mechanism of News and Digital Media Published Content

• Any person having a grievance regarding content published by a publisher in relation to the Code of Ethics may furnish his grievance on the grievance mechanism established by the publisher under rule 11.
• The publisher shall generate and issue an acknowledgement of the grievance for the benefit of the complainant within twenty-four hours of it being furnished for information and record.
•  The publisher shall address the grievance and inform the complainant of its decision within fifteen days of the registration of the grievance.
•  If the decision of the publisher is not communicated to the complainant within the stipulated fifteen days, the grievance shall be escalated to the level of the self-regulating body of which such publisher is a member.
• Where the complainant is not satisfied with the decision of the publisher, it may prefer to appeal to the self-regulating body of which such publisher is a member within fifteen days of receiving such a decision.
•  The self-regulating body shall address the grievance referred to in clauses (b) and (c), and convey its decision in the form of a guidance or advisory to the publisher, and inform the complainant of such decision within a period of fifteen days.
•  Where the complainant is not satisfied with the decision of the self-regulating body, it may, within fifteen days of such decision, prefer an appeal to the Oversight Mechanism referred to in rule 13 for resolution.

H. Self Regulating Mechanism – Level 1

• A publisher shall establish a grievance redressal mechanism and shall appoint a Grievance Officer based in India, who shall be responsible for the redressal of grievances received by him.
• The Grievance Officer shall be the contact point for receiving any grievance relating to the Code of Ethics and act as the nodal point for interaction with the complainant, the self-regulating body and the Ministry.
• Online curated content shall be classified by the publisher of such content into the categories referred to in the Schedule.
• Every publisher of online curated content shall display the rating of any online curated content and an explanation of the relevant content descriptors, prominently to its users at an appropriate place, as the case may be, in a manner that ensures that such users are aware of this information before accessing such content.

I. Self Regulating Mechanism – Level 2

• There may be one or more self-regulatory bodies of publishers, being an independent body constituted by publishers or their associations.
• The self-regulatory body referred to in sub-rule (1) of the published code shall be headed by a retired judge of the Supreme Court, a High Court, or an independent eminent person from the field of media, broadcasting, entertainment, child rights, human rights or such other relevant field, and have other members, not exceeding six, being experts from the field of media, broadcasting, entertainment, child rights, human rights and such other relevant fields.
•  The self-regulating body shall, after its constitution in accordance with sub-rule (2), register itself with the Ministry within a period of thirty days from the date of notification of these rules, and where a self-regulating body is constituted after such period, within thirty days from the date of its constitution.
• In case of any content where it is satisfied that there is a need for taking action to delete or modify the content for preventing incitement to the commission of a cognizable offence relating to public order, or in relation to the reasons enumerated in sub-section (1) of section 69A of the Act, refer such content to the Ministry for consideration by the Oversight Mechanism referred to in rule 13 for appropriate action.
• Where the self-regulating body is of the opinion that there is no violation of the Code of Ethics, it shall convey such a decision to the complainant and such entity.
• Where a publisher fails to comply with the guidance or advisories of the self-regulating body within the time specified in such guidance or advisory, the self-regulating body shall refer the matter to the Oversight Mechanism referred to in rule 13 within fifteen days of expiry of the specified date.

J. Oversight Mechanism – Level 3

• The Ministry shall publish a charter for self-regulating bodies, including Codes of Practices for such bodies;
  •  establish an Inter-Departmental Committee for hearing grievances;
  • refer to the Inter-Departmental Committee grievances arising out of the decision of the self regulating body under rule 12, or where no decision has been taken by the self-regulating body within the specified time period, or such other complaints or references relating to violation of Code of Ethics as it may consider necessary;
  • Issue appropriate guidance and advisories to publishers;
  • Issue orders and directions to the publishers for maintenance and adherence to the Code of Ethics.
• The Ministry shall appoint an officer of the Ministry not below the rank of a Joint Secretary as an Authorised Officer under rules 15 or 16, as the case may be.
• The Ministry shall constitute an Inter-Departmental Committee, called the Committee, consisting of representatives from the Ministry of Information and Broadcasting, Ministry of Women and Child Development, Ministry of Law and Justice, Ministry of Home Affairs, Ministry of Electronics and Information Technology, Ministry of External Affairs, Ministry of Defence, and such other Ministries and Organisations, including domain experts, that it may decide to include in the Committee: Provided that the Authorised Officer designated under sub-rule (2) of rule 13 shall be the Chairperson of such Committee.
•  The Committee shall meet periodically and hear the following complaints regarding violation or contravention of the Code of Ethics.
• Any complaint referred to the Committee, whether arising out of the grievances or referred to it by the Ministry, shall be in writing and may be sent either by mail or fax or by e-mail signed with the electronic signature of the authorised representative of the entity referring the grievance, and the Committee shall ensure that such reference is assigned a number which is recorded along with the date and time of its receipt.
•  The Ministry shall make all reasonable efforts to identify the entity referred to in Rule 8 which has created, published or hosted the content or part thereof, and where it is able to identify such entity, it shall issue a duly signed notice to such entity to appear and submit their reply and clarifications, if any, before the Committee.
• In the hearing, the Committee shall examine complaints or grievances and may either accept or allow such complaint or grievance, and make the following recommendations to the Ministry, namely:—

1. 1. warning, censuring, admonishing or reprimanding such entity; or
   2.  requiring an apology by such entity; or
   3.  requiring such entity to include a warning card or a disclaimer.
   4. In case of online curated content, direct a publisher to-reclassify ratings of relevant content; or edit synopsis of relevant content; or make appropriate modifications in the content descriptor, age classification and parental or access control; delete or modify content for preventing incitement to the commission of a cognisable offence relating to public order.

• In case of content where the Committee is satisfied that there is a need for taking action in relation to the reasons enumerated in sub-section (1) of section 69A of the Act, it may recommend such action.
•  The Ministry may, after taking into consideration the recommendations of the Committee, issue appropriate orders and directions for compliance by the publisher.
• In respect of recommendations referred to in clauses (e) and (f) of sub-rule (5) of rule 14, the Authorised Officer shall place the matter for consideration before the Secretary, Ministry of Information and Broadcasting for taking appropriate decision.
• In case the recommendation of the Authorised Officer is not approved by the Secretary, Ministry of Information and Broadcasting, the Authorised Officer shall convey the same to the Committee. (3) A direction under this rule may be issued only in respect of a specific piece of content or an enumerated list of content, as the case may be, and shall not require any entity to cease its operations.
• In case of emergency nature, the Secretary, Ministry of Information and Broadcasting may, if he is satisfied that it is necessary or expedient and justifiable for blocking for public access of any information or part thereof through any computer resource and after recording reasons in writing, as an interim measure issue such directions as he may consider necessary to such identified or identifiable persons, publishers or intermediary in control of such computer resource hosting such information or part thereof without giving him an opportunity of hearing.
• The Authorised Officer, at the earliest but not later than forty-eight hours of issue of direction under sub-rule (2), shall bring the request before the Committee for its consideration and recommendation.
• The Authorised Officer shall maintain complete records of the proceedings of the Committee, including any complaints referred to the Committee, and shall also maintain records of recommendations made by the Committee and any directions issued by the Authorised Officer.
• The Review Committee shall meet at least once in every two months and record its findings whether the directions of blocking of content or information issued under these rules are in accordance with the provisions of sub-section (1) of section 69A of the Act and if it is of the opinion that the directions are not in accordance with the said provisions, it may set aside the directions and issue order for unblocking of such content or information generated, transmitted, received, stored or hosted in a computer resource.

K. Furnishing of Information

• A publisher of news and current affairs content and a publisher of online curated content operating in the territory of India shall inform the Ministry about the details of its entity by furnishing information along with such documents as may be specified, for the purpose of enabling communication and coordination.
• The information referred to in sub-rule (1) shall be furnished within a period of thirty days of the publication of these rules, and where such publisher begins operation in the territory of India or comes into existence after commencement of these rules, within thirty days from the date of start of its operations in the territory of India or it’s coming into existence, as the case may be.
•  The publisher of news and current affairs content and the publisher of online curated content shall publish periodic compliance reports every month mentioning the details of grievances received and action taken thereon.
•  The Ministry may call for such additional information from the publisher as it may consider necessary for the implementation of this Rule.

K. Disclosure of Information

• A publisher and a self-regulating body shall make true and full disclosure of all grievances received by it, the manner in which the grievances are disposed of, the action taken on the grievance, the reply sent to the complainant, the orders or directions received by it under these rules and action taken on such orders or directions.
•  The information referred to in sub-rule (1) shall be displayed publicly and updated monthly.
• Subject to any law for the time being in force, the publisher shall preserve records of content transmitted by it for a minimum period of sixty days and make it available to the self-regulating body or the Central Government, or any other Government agency, as may be requisitioned by them for implementation of these rules.